Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government is a book by Clark Neily, vice president at the Cato Institute, where he deals with criminal justice issues. Neily discussed the book and its themes across multiple appearances on The Bob Zadek Show, where host Bob Zadek described him as a scholar on constitutional law, over-criminalization, civil forfeiture, police accountability and gun rights. Judicial Round-Up with Clark Neily (2022)
The book and its author
Zadek introduced Neily as a vice president at the Cato Institute who deals with criminal justice issues and as the author of Terms of Engagement. Zadek noted that when Neily wrote the book, he had visited the show to discuss it. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020) In a later episode, Zadek described Neily as Vice President for Criminal Justice at Cato and as a scholar on constitutional law, over-criminalization, civil forfeiture, police accountability and gun rights, and noted that Neily contributed a chapter to Libertarianism.org’s Visions of Liberty. Judicial Round-Up with Clark Neily (2022)
The pro-government bias of judges
Neily, speaking as a constitutional litigator, described what he called a palpable pro-government bias in the judiciary. In his experience, judges tend to favor the government, sometimes following instructions from the Supreme Court and courts of appeal, and also from an informal tendency to defer to the government, to credit the government’s representations even when they are not credible, and to make it very difficult for individuals challenging government action to meet the required standard. He called the pro-government mindset among judges persistent and almost without exception, and said it has influenced the jurisprudence. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
Neily illustrated the point with jury selection. He said a criminal defense attorney called for jury duty on a drug prosecution would be struck by the prosecutor, and that a prosecutor called for jury duty in another criminal prosecution would be struck by the defense attorney — not because either side knows for sure the juror will sympathize with the side they work for, but because it is sufficiently likely that they will not take the chance. Zadek responded that it is too bad litigants cannot have a voir dire to strike the judge from the case. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
Dobbs and the democratization of rights
In the 2022 episodes, Zadek framed the Supreme Court’s term as a reversal from the disappointment libertarians felt a year earlier, when the judges did not seem to fulfill the promise they thought they had from them when they ascended to the bench. He described the Dobbs decision as the abortion-related decision that overruled and undid the effects of the two major abortion cases, including Casey, ending 50 years of what he called a Supreme Court-created abortion regime. Judicial Round-Up with Clark Neily (2022)
Neily explained that Dobbs v. Jackson Women’s Health Organization held that there is no constitutional right to an abortion, overruling about 50 years of Supreme Court precedent starting with Roe v. Wade, which had held that there is a constitutional right to have an elective abortion. Five justices held that this is not a plausible way to read the Constitution, and therefore Roe and Casey must be overturned. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
Asked by Zadek whether it is an overstatement to say Roe created a right to an abortion, Neily discussed unenumerated rights — rights not specifically articulated in the text of the Constitution, like the right to freedom of speech. He gave as examples the right to travel around the United States, which he said has never been seriously questioned and is nowhere mentioned in the text of the Constitution, and the right to guide the upbringing of one’s own children, including decisions about where a child goes to school and whether they go to church, which he said is nowhere mentioned in the text but has been enforced for over a hundred years by the Supreme Court. He framed the question as whether the court “invent[s]” such rights or instead “recognize[s]” them as plausibly among the unalienable natural rights we all possess. On abortion, he said some people think the ability to terminate a pregnancy is among the unalienable natural rights and others think it is not, and that he and Jay Schweikert argued in their piece for Cato’s blog that reasonable libertarians can see it either way, with powerful arguments on both sides and powerful objections to either view. Judicial Round-Up with Clark Neily (2022)
Qualified and absolute immunity
Zadek said that nothing is more important for the preservation of civil society than that citizens have respect for their government and for the laws that regulate their behavior, and that this respect is in great danger in the aftermath of the creation of qualified immunity. He said the stories of how the relationship of citizens to their government is being eroded by egregious cases are legion, and that Neily would share them. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
The 2022 episodes list qualified immunity, absolute immunity, Section 1983, police accountability and criminal justice reform among the topics discussed, and describe the conversation as exploring the judicial creation of qualified and absolute immunity and the potential for market-based reforms like professional liability insurance for law enforcement. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022) The episode summary states that the court has shifted power back to states regarding abortion while simultaneously insulating government officials from accountability for civil rights violations. Judicial Round-Up with Clark Neily (2022)
Across episodes: no development shown
The excerpts show the book and its themes touched in three episodes — the 2020 discussion of qualified immunity, and the two July 2022 episodes on the end of the Supreme Court term — but the excerpts do not show the treatment of the book’s argument changing between the earlier and later appearances; the 2022 material restates Neily’s role and the book’s title while turning to Dobbs and immunity, and the excerpts contain no account of the book’s argument being revised or advanced differently over time.
What the sources do not cover
The excerpts do not state the book’s publisher, publication date, or contents beyond its title and the themes attributed to Neily. They do not give the holding or amendment at issue in any immunity case, the name of any bill, or the outcome of any litigation beyond Dobbs. The excerpts also break off mid-sentence in places, and no excerpt states what reforms, if any, Neily proposed in the book itself.